The Re-Instatement of Military Courts in Pakistan

The Article 10-A of Constitution of Pakistan states “For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process”. This makes every individual accused, entitled to fair trial which carries an inherent need for due process. Article 10 makes it compulsory for any individual arrested, to be produced before a magistrate within 24 hours and to be allowed the right to be represented by a legal practitioner of his/her choice. These rights are fundamental, available to all those residing within Pakistan, regardless of the criminal record of the accused. Judicial decisions deprived of these rights open themselves up to a debate regarding their validity.

The judicial system in Pakistan suffers from problems of efficacy regarding these fundamental rights. But the system is still developing and this problem is not a new concoction of the legal system in Pakistan, as it has its vestiges in every judicial system in the world. There are dense legal processes involved in court battles which can be very cumbersome but are necessary to ensure that only those who deserve penalties for crimes are penalized. Military courts constitute one limb of the legal system in Pakistan and are put in place to deal with assorted cases (like incidences of terrorism) and allow for speedy trials. While the idea is adequate, speedy trials in any system attempting to dispense justice act as an antithesis to the idea of justice, as they increase the probability otherwise, making the balance between justice delayed, justice denied, Justice rushed and justice crushed, unmanageable.

The heinous terrorist attack on the Army Public School in Peshawar created a situation of great distress in the country and resulted in 21st Amendment to Constitution which re-established Army Courts for a period of 2 years, from 7th January 2015. The Courts were created to aid in the prosecution of the perpetrators of the attack (alleged terrorists), and thus to decrease the prosecutorial burden on Sessions Courts. The original extentention of two years was renewed for two more years by the National Assembly and Senate which passed a bill to allow for the latest reinstatement.

The procedure followed during the prosecution of an accused in a Court of Law in Pakistan is well prescribed and established. When a crime is reported, it is the duty of Police to investigate the accusation and its validity, if the investigation results are positive the arrest is made and the accused is booked for trial. An investigation completed and the accused is produced before a magistrate within 24 hours of the arrest, within which the accused reserves the right to be represented by legal practitioner of his choice. The trial proceeds before a competent judge, and is decided in accordance with the evidence and witnesses presented by prosecution and defence in compliance of the the Qanun -e- Shahadat Order 1984. Parties involved are also allowed the right to appeal to a superior court against the judgment given at the conclusion of the proceedings.

Military Courts have a similar process with some serious defects in the crucial steps that are followed during prosecution. The person suspected can be detained or arrested without any warrant, without a limit on the the duration of detention or on the maximum time within which the detainee needs to be brought before a magistrate. The accused is not given the right to be represented by a legal expert in many cases. The officers appointed as judges are military personnel who lack legal understanding and are not familiar with the process that should be adopted. The competence of individuals to bear witness and the evidence are not properly examined. In addition to these, the most egregious violation of all, which prohibits the convict from the right to appeal in any civilian court, is an major part of the military system of justice.

In April 2015, Sabir Shah disappeared from Lahore’s central jail. His family and lawyers were not informed of his transfer and there was no process through which he could be traced. Five months later, via an ISPR press release, his family learnt that Sabir had been awarded a death sentence by a military court.
Sabir’s lawyer claimed that neither was the defense ever informed of the trial, nor was it given a chance to examine the evidence and cross-examine the witnesses. Sabir was originally indicted on murder charges, the trial for which was underway at a civilian court when he was mysteriously moved to a military internment center. The press release stated that Shah confessed to having been involved in the murder of lawyer Syed Arshad Ali.

At least 27 filed appeals with civilian courts, alleging coercion of confessions and denial of access to lawyers and to evidence used against them, (according to Reuters research and local media reports) but none have been successful in achieving some legal respite. The Supreme Court bench, hearing the said petition, dismissed the claim that military trials had been in contravention with the standards of a free and fair trial guaranteed by the Constitution. The appeals were rejected and one of the judges (CJ Anwar Zaheer) pointed out what he thought was the irony in the situation by stating that terrorists were challenging the constitution and the law of the land, but their counsel was citing fundamental rights in their defence.

All the lawyers representing the 10 convicts stated that they were denied access to court records and were not allowed to meet their clients for the duration of the military trial. They also said their clients were either coerced into confessing or denied confessing at all. According to the military’s press wing, 78 of 81 accused were convicted on the basis of confessions. Two families and one lawyer also said they had been harassed or threatened after filing appeals. The father of one convict reported that four family members were abducted by men in military uniforms and beaten.

The military declined to comment on those allegations.

The critics of this system are loud and bold but the supporters are also firm. Human Rights activist Asma Jahangir had appealed to the Supreme Court to order retrial in all cases in which military courts had handed down convictions, including capital punishments. These were rejected.

During the past two years of Military Courts a total of 274 individuals have been convicted, with 161 individuals to death, 12 of whom have been executed and 113 have been given jail terms, mostly life sentences (as per a Dawn News special report).

The bill of extending this system for two more years had been put before legislature by the government, and was passed with 4 amendments in previous draft by 2/3rd majority. Opposing the bill Mehmood Achakzai asked if the country had reaped any benefits from the establishment of the military courts in the last two years. Opposition to the bill noted that a more permanent reform was needed to aid the judicial system as Military courts were not a permanent solution.

The matter at hand currently, is how the proposed amendments would affect the military court system and if they are capable of improving their current situation. The right to counsel and production before judge within 24 hours are significant improvements which have been added to the new amendment. This, although a breakthrough development for the military system of justice, leaves all other factors such as competency of judges, the standard of proof used in trial and most important no leave to appeal, unaddressed. The government neither has taken any action for the improvement of judicial structure and nor seems to be interested in taking any in near future. Assessing from the progress of the current situation, this era of outstanding circumstances permitting violations of fundamental rights may last for decades, .

There are global concerns regarding the situation in Pakistan and no forum has encouraged the reinstatement of military courts, rather, the decision has been condemned by many. Majority concerns raised ask for an improvement of the original structure of courts in Pakistan and for the country to shut the doors of Army Courts for once and all. The International Commission of Jurists, a non-governmental organization that promotes human rights through the rule of law, has criticized the army-run courts by stating:

“Proceedings before Pakistani military courts fall well short of national and international standards requiring fair trials before independent and impartial courts.”

Pakistan must consider its citizens innocent until proven guilty, beyond reasonable doubt, by a competent court through due process. The behavior of Army courts treating citizens as criminals before they have been declared so by a court, must be rejected.